Sample
Appellate ArgumentsRegarding ContemptThis is an excerpt
from
a brief
filed in the Supreme Judicial Court of Massachusetts.The names of the
parties
and
any other information which might leadto their
identification
have
been changed.

WARNING:
This brief was
not
successful. It was, I assume, either too critical of the
Appeals
Court three-judge panel or not read or read by a clerk just out
of
law school. The law is undisputable. I would welcome
critiques by other attorneys. Email.

I was not
the
attorney who wrote the original appellate brief filed in the Appeals
Court.Nor did I argue
before
that
panel.

NOTE:
You must
find
the equivalent cases in your own state.

1. Where there was no clear
and
unequivocal
order, there could be no finding of contempt.

To find civil contempt, there
must
be a
clear
and undoubted disobedience of an equally clear and unequivocal command.
Warren
Gardens Housing Co-op. v. Clark, 420 Mass. 699, 700
(1995).
The obligation of the party must be set out in a sufficiently specific
and unambiguous manner as to constitute a clear command regarding what
is required to comply. Hobson v. Perry, 13 Mass.App.Ct.
944
(1982).

Even assuming arguendo
that
the
panel was
correct that the payment orders were clear as to who was to pay and to
whom payment was to be made, there was no order stating the time by
which
payment was to be made. So contempt could not be found on the
same
day an alleged order issued. "Where a court's order lacks a
critical
term or contains an error, a finding of civil contempt is
inappropriate." Demoulas v. Demoulas Super Mkts., 424
Mass. 501, 566
(1977).
[Appellant's Brief at 19-23].

Given that John Doe, in
violation of
Dist./Mun.Cts.R.Civ.P.
Rule 6(c), handed each of the motions and oppositions to Jane Smith as
the case was called for hearing, she did not even receive proper notice
of the several motions to show cause why she should not be found in
contempt
. . . and the panel must have overlooked these facts, for it chose only
to include ADD-299-303 in its opinion, and not the Certificates of
Service.
[See n. 15 supra.]

Thus Jane Smith had no
opportunity
to
meaningfully
oppose those motions. Due process was being trampled on in that session:
Mary Jones was not getting the discovery to which she had long since
been
entitled and Jane Smith herself was being punished for zealously
advocating
on her client's behalf. And Jane Smith told the court so
[ADD-205].

It was improper for the court
to
punish
Mary Jones
for its anger at Jane Smith and to retaliate against Jane Smith for
seeking
justice for Mary Jones.

Neither woman was at any time
granted an
evidentiary
hearing with or without indices of due process on the issue of
contempt.
Due process with an evidentiary trial is required for contempt to
attach. Milano v. Hingham
Sportswear Co., Inc., 366 Mass. 376, 378-79 (1974).

In sum, without a clear and
unequivocal
command,
there can be no "clear and undoubted disobedience." Cf. Judge
Rotenberg
Educ. Center, Inc. v. Comm'r of Dept. of Mental Retardation (No.1),
424 Mass. 430, 448 (1997), the case which the panel cited. Neither can
caprice be substituted for law. Clabburn v. Phillips,
245
Mass. 47, 52 (1923). Here caprice invited danger, and that danger came
to fruition, in that the judge promised a hearing but then did not
allow
one to take place.

1a. Where the court's order on
Paper
157
failed to state a time within which payment had to be made, a finding
of
civil contempt at the same hearing the order issued was clear error.

The endorsement on Paper 157
[ADD-261]
faild to
state an amount to be paid, failed to state the time within which the
money
had to be paid, failed to state the entity to whom money had to be
paid,
and failed to state who was to pay (Jane Smith or Mary Jones)
[Appellant's
brief at 5-7]. The only amount of money stated in that endorsement is
the
per diem rate for the in terrorem fine [ADD-300]*.

~NOTE~This is a
reference
to an
addendum.You must
file
with
an
appeal
or appellate petition, an appendix or addendum.

The court itself was confused:
Paper
157
itself
states that $261.25 was sought from Jane Smith, but the court wrote on
December 13th [ADD-S.A. 6 and said on January 17 [JRA-76] that only
Mary
Jones was in contempt of the alleged order to pay $261.25.

Thus, it was out of the
endorsement
on
Paper 157,
which lacked all the critical terms necessary for a clear and
unequivocal
order, that the year-long confusion arose. [OPINION at 1 n. 1].

Jane Smith, therefore, could
not
have been
found,
on any legal or factual basis, in contempt for not complying with the
endorsement
on #157 on any day.

1b. Where the order to pay
unspecified sums
and the finding of contempt appear in the same endorsement (on #165),
the
order is reversible.

The endorsement on Paper 165
[ADD-216]
failed
to state a total amount to be paid and failed to state the entity to
whom
money had to be paid [Appellant's brief at 5-7]. According to the
endorsement
on #165, Jane Smith and/or Mary Jones were to pay:

(a) an
amount
stated on Paper 157 (but that so-called order kept on changing),

(b) an
amount
stated on or in Paper 162 (but there is no dollar amount on orin
Paper
162)
[ADD-267-268],

(c) an
additional
$558 on Paper 165 (but #165 contains no such amount in it),

(d) the
monies
were to be paid not only that day but during the hearing itself, and

(e) a
civil
penalty of $50 per day until an unspecified sum was paid [ADD-216].

Thus, where the endorsement on Paper
165 is
ambiguous, there can be no clear and undoubted disobedience, and
contempt
cannot be found. Judge Rotenberg, 424 Mass. at 448.